Case no.

13/26
PEDRO D. H. GALLANOSA, et al., petitioners, vs. HON. UBALDO Y. ARCANGEL, et al.,respondents. [G.R. No. L-29300; June 21, 1978] FACTS: Florentino Gallanosa executed a will in 1938 when he was 80 years old. He owned 61 parcels of and at that time. He died in 1939 childless and survived by his brother Leon. In his will, he bequeathed his 1/2 share of the conjugal estate to his second wife Tecla and if she predecease him (as what occurred), the said share shall be assigned to the spouses Gallanosa (Pedro & Corazon). Pedro is Tecla's son by her 1st marriage. He also gave 3 parcels of land to Adolfo, his protg. The said will was admitted to probate with Gallanosa as executor. In 1952, the legal heirs filed an action for the recovery of said 61 parcels of land. The action was dismissed on the ground of res judicata. Then, 28 years after probate, another action against Gallanosa for annulment of the will, recovery of the lands alleging fraud and deceit, was filed. As a result, the lower court set aide the 1939 decree of probate. ISSUE/S: Whether or not a will which has been probated may still be annulled RULING: The Court ruled in the negative. A final decree of probate is conclusive as to the due execution of the will. Due execution means that the testator was of sound and disposing mind at the time of the execution and that he was not acting under duress, menace, fraud or undue influence. Finally, that it was executed in accordance with the formalities provided by law. The period for seeking relief under Rule 38 has already expired, hence the judgment may only be set aside on the grounds of, 1) lack of jurisdiction or lack of due process of law, and 2) the judgment was obtained by means of extrinsic collateral fraud (which must be filed within 4 years from the discovery). Finally Article 1410 cannot apply to wills and testament.

Case No. 14/26 In re Will of the deceased Silvestra Baron. VIVENCIO CUYUGAN, petitioner
appellant, vs. FAUSTINA BARON and GUILLERMO BARON, oppositors-appellees. [G.R. No. L-41947; January 16, 1936] FACTS: Silvestra Baron died on January 30, 1933. The death certificate recites that she was eighty-six years of age and died of heart failure. The petition further recites that she left an estate exceeding in value the sum of P80,000 which she disposed of by will dated December 17, 1932, that she died single without forced heirs. The will appointed Vivencio Cuyugan, her nephew, as executor. The original of this will is signed "Silestra On" and the copy is signed "Silestra Baron. Both copies are written in the Pampanga dialect and consist of one sheet and are witnessed in due form by Vicente David, Valeriano Silva and Zacarias Nuguid (known to the testator). The amended oppositions of Guillermo Baron, brother of the deceased, and Faustina Baron, sister of the deceased, allege in substance first, that at the time of the execution of the alleged will, Silvestra Baron was mentally and physically incapacitated for the execution of a will; and, second, that her signature and alleged consent to the said will was obtained and the attorney who prepared the document and the witnesses who affixed their signatures thereto. An instrument purporting to be a will executed and witnessed in accordance with the formalities required by the statute is entitled to the presumption of regularity. But the burden of the evidence passed to the proponent when the oppositors submit credible evidence tending to show that the supposed testator did not possess testamentary capacity at the time or that the document was not the free and voluntary expression of the alleged testator or that the will, for any other reason, is void in law. The evidence shows that the same morning when Silvestra Baron signed the alleged will she suffered a physical collapse of such a serious nature that a physician and a nurse were immediately called in. By reason of her advanced age and the gravity of her illness, she was unable to do anything

for herself. As the doctor and the nurse were leaving, Vivencio Cuyugan, with an attorney and three witnesses, entered the house prepared to obtain the will of Silvestra Baron. Neither the doctor nor the nurse were presented as witnesses by the proponent. Epifania Sampang, admittedly an intelligent young woman, who was the first to reach Silvestra Baron and remained throughout the morning attended to her, testified that when she reached the house she found her grandaunt lying in bed, very pale and unconscious; that she called to her but she did not answer and only groaned; that her mouth was twisted and her lower lip swollen. ISSUE/S: Whether or not there should be disallowance of the will for it lacks the capacity of the testator RULING: The Court ruled that there is a valid disallowance in this case standing at her bedside was the attorney with three witnesses and the chief beneficiary, Vivencio Cuyugan, and yet so far as this record shows, not a word was exchanged between any of them and the suffering old woman. We don't know what drug the doctor administered but it is clear to us from the evidence that in her dazed physical and mental condition she had no adequate understanding of what she was doing at that time. She could not even sign her name to the original will properly or correctly, and when this defect was noted by one of the astute subscribing witnesses, he suggested that they have her sign another copy (t.s.n. page 109) which was done. She never saw the alleged will at any time again prior to her death which occurred forty-four days later. It was immediately taken away by an attorney who kept it in his possession alleging that she had instructed him to keep it secret. There is, however, credible evidence in the record that before her death she had denied to several persons that she made any will. This belief on her part that she had not made any will explains her failure to do any act of revocation in the forty-four days during which she lingered in this life. The doctrine that where the testator has had an opportunity to revoke his will subsequent to the operation of an alleged undue influence upon him but makes no change in it, the courts will consider this fact as weighing heavily against the testimony of undue influence, has no application to cases in which there has been an initial lack of testamentary capacity. It has

no application, moreover, where from the day of execution until the death of the testator his mental condition is such that he cannot judge the propriety of revoking the will. Nor obviously does it apply to a case where the alleged testator harbors the belief that he had not executed the will in question.

15 NERI,petitioner, vs. AKUTIN, respondent. 74 PHIL 185; May 21, 1943: MORAN, J.: FACTS: Testator Neri indicated in his will that he was leaving all of his properties by universal title to his children by his secondmarriage with preterition of his children by his first marriage.- Eleuterio, Agripino, Agapita, Getulia, Rosario and Celerina are all Neris children by his first marriage. The trial court annulled the institution of the heirs and declared total intestacy. The children by the second marriage filed a motion for reconsideration on the grounds that there is no preterition as to the children of the first marriage have received their shares in the property left by the testator assuming that there has been a preterition, the effect would not be the annulment of the institution of heirs but simplyt he reduction of the bequest made to them. The children by the second marriage anchor their argument on the concept of heir whose A814 definition is deemed repealed by that of the Code of Civil Procedure. It is maintained that the word "heredero" under the Civil Code, is not synonymous with the term "heir" under the Code of Civil Procedure, and that the "heir" under the latter Code is no longer personally liable for the debts of the deceased as was the "heredero" under the Civil Code ISSUE/S:

Whether or not there is preterition which will lead to total intestacy RULING: The Court ruled that there is indeed preterition in this particular case. According to the courts findings, none of the children by the first marriage received their respective shares from the testators property. Even if clause 8 of the will is invoked (said clause states that the children by his first marriage had already received their shares in his property excluding what he had given them as aid during their financial troubles and the money they had borrowed from him, the Court can rely only on the findings of the trial court that the inventory indicates that the property of Neri has remained intact and that no portion has been given to the children of the first marriage.- Neri left his property by universal title to the children by his second marriage and did not expressly disinherit his children by his first marriage but did not leave anything to them. This fits the case of preterition according to A814, which provides that the institution of heirs shall be annulled and intestate succession should be declared open.2. YES- The word "heir" as used in A814 of the Civil Code may not have the meaning that it has under the Code of Civil Procedure, but this does prevent a bequest from being made by universal title as is in substance the subject-matter of A814 of the Civil Code.- It may also be true that heirs under the Code of Civil Procedure may receive the bequest only after payment of debts left by the deceased and not before as under the Civil Code, but this may have a bearing only upon the question as to when succession becomes effective and can in no way destroy the fact that succession may still be by universal or special title.- Since a bequest may still be made by universal title and with preterition of forced heirs, its nullity as provided in article814 still applies there being nothing inconsistent with it in the Code of Civil Procedure. The basis for its nullity is the nature and effect of the bequest and not its possible name under the Code of Civil Procedure.- In addition, Secs. 755 and 756 of the Code of Civil Procedure affected A814 and A851 of the Civil Code. But these sections have been expressly repealed by Act No. 2141, thus restoring force to A814 and A851. 16 JOHNNY S. RABADILLA, petitioner, vs. COURT OF APPEALS AND MARIA MARLENA COSCOLUELLA Y BELLEZA VILLACARLOS, respondents. G.R. No. 113725; June 29, 2000

FACTS: In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee parcel of land. The said Codicil, which was duly probated and admitted in Special Proceedings. "FIRST I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of 141 P. Villanueva, Pasay City: (a) Lot No. 1392 of the Bacolod Cadastre, covered by TransferCertificate of Title No. RT4002 (10942), which is registered in my name according to the records of the Register of Deeds of Negros Occidental. (b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla. xxx FOURTH (a)....It is also my command, in this my addition (Codicil), that should I die and Jorge Rabadilla shall have already received the ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), and also at the time that the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge Rabadilla shall have the obligation until he dies, every year to give to Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies. FIFTH (a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10492), shall have the obligation to still give yearly, the sugar as specified in the Fourth paragraph of his testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year. SIXTH I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have left and bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of

Domestic, until Maria Marlina shall die, lastly should the buyer, lessee or the mortgagee of this lot, not have respected my command in this my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter's heirs, and shall turn it over to my near desendants, (sic) and the latter shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further command in this my addition (Codicil) that my heir and his heirs of this Lot No. 1392, that they will obey and follow that should they decide to sell, lease, mortgage, they cannot negotiate with others than my near descendants and my sister."
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the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of the herein petitioner who was lessee of the property and acting as attorney-in-fact of defendant-heirs, arrived at an amicable settlement and entered into a Memorandum of Agreement on the obligation to deliver one hundred piculs of sugar. However, there was no compliance with the aforesaid Memorandum of Agreement except for a partial delivery of 50.80 piculs of sugar corresponding to sugar crop year 1988 -1989. ISSUE/S: Whether or not there is modal substitution RULING: The Court ruled that the disquisition made on modal institution was, precisely, to stress that the private respondent had a legally demandable right against the petitioner pursuant to subject Codicil. It is a general rule under the law on succession that successional rights are transmitted from the moment of death of the decedent and compulsory heirs are called to succeed by operation of law. The legitimate children and descendants, in relation to their legitimate parents, and the widow or widower, are compulsory heirs.
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Thus, the petitioner, his mother and sisters, as compulsory heirs of

the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla. Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of the decedent;

corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death. In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the condition that the usufruct thereof would be delivered to the herein private respondent every year. Upon the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over the said property, and they also assumed his (decedent's) obligation to deliver the fruits of the lot involved to herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the right of private respondent over the usufruct, the fulfillment or performance of which is now being demanded by the latter through the institution of the case at bar. Therefore, private respondent has a cause of action against petitioner and the trial court erred in dismissing the complaint below. Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted. Under substitutions in general, the testator may either (1) provide for the designation of another heir to whom the property shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution, or (2) leave his/her property to one person with the express charge that it be transmitted subsequently to another or others, as in a fideicommissary substitution. In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the Will, taking into consideration the circumstances under which it was made.
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Such construction as will sustain and uphold the Will in all its parts must be adopted.

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Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they sell, lease, mortgage or otherwise negotiate the property involved. The Codicil further provides that in the event that the obligation to deliver the sugar is not respected, Marlena Belleza Coscuella shall seize the property and turn it over to the testatrix's near descendants. The non-performance of the said obligation is thus with the sanction of seizure of the property and reversion thereof to the testatrix's near descendants. Since the said obligation is clearly imposed by the testatrix, not only on the instituted heir but also on his successors-in-interest, the sanction imposed by the testatrix in case of non-fulfillment of said obligation should equally apply to the instituted heir and his successors-in-interest.

17 AURO G. VIZCONDE, petitioner, vs., COURT OF APPEALS, REGIONAL TRIAL COURT, Branch 120, Caloocan City, and RAMON G. NICOLAS, respondents.

FATCS: Petitioner Lauro G. Vizconde and his wife Estrellita Nicolas-Vizconde had two children, viz., Carmela and Jennifer. Petitioners wife, Estrellita, is one of the five siblings of spouses Rafael Nicolas and Salud Gonzales-Nicolas. The other children of Rafael and Salud are Antonio Nicolas; Ramon Nicolas; Teresita Nicolas de Leon, and Ricardo Nicolas, an incompetent. Antonio predeceased his parents and is now survived by his widow, Zenaida, and their four children. Estrellita purchased from Rafael a parcel of land evidenced by a Lubusang Bilihan ng Bahagi ng Lupa na Nasasakupan ng Titulo TCT NO. T-36734. Estrellita sold the Valenzuela property to Amelia Lim and Maria Natividad Balictar Chiu for Three Million, Four Hundred Five Thousand, Six Hundred Twelve Pesos (P3,405,612.00). The following year an unfortunate event in petitioners life occurred. Estrellita and her two daughters, Carmela and Jennifer, were killed on June 30, 1991, an incident popularly known as the Vizconde Massacre. The findings of the investigation conducted by the NBI reveal that Estrellita died ahead of her daughters. Accordingly, Carmela, Jennifer and herein petitioner succeeded Estrellita and, with the subsequent death of Carmela and Jennifer, petitioner was left as the sole heir of his daughters. Nevertheless, petitioner entered into an Extra-Judicial Settlement of the Estate of Deceased Estrellita NicolasVizconde With Waiver of Shares with Rafael and Salud, Estrellitas parents. The extrajudicial settlement provided for the division of the properties of Estrellita and her two daughters between petitioner and spouses Rafael and Salud, settlement gave fifty percent (50%) of the total amount of the bank deposits of Estrellita and her daughters to Rafael, except Saving Account No. 104-111211-0 under the name of Jennifer which involves a token amount. The other fifty percent (50%) was allotted to petitioner. The Paraaque property and the car were also given to petitioner with Rafael and Salud waiving all their claims, rights, ownership and participation as heirs in the said properties.
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ISSUE/S:

Whether or not the probate courts Order, which respondent Court of Appeals sustained, nullifying the transfer of the Valenzuela property from Rafael to Estrellita and declaring the Paraaque property as subject to collation is valid RULING: The Court ruled that the basic principles of collation need to be emphasized at the outset. Article 1061 of the Civil Code speaks of collation. It states: Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition. Collation is the act by virtue of which descendants or other forced heirs who intervene in the division of the inheritance of an ascendant bring into the common mass, the property which they received from him, so that the division may be made according to law and the will of the testator. Collation is only required of compulsory heirs succeeding with other compulsory heirs and involves property or rights received by donation or gratuitous title during the lifetime of the decedent. The purpose for it is presumed that the intention of the testator or predecessor in interest in making a donation or gratuitous transfer to a forced heir is to give him something in advance on account of his share in the estate, and that the predecessors will is to treat all his heirs equally, in the absence of any expression to the contrary. Collation does not impose any lien on the property or the subject matter of collationable donation. What is brought to collation is not the property donated itself, but rather the value of such property at the time it was donated, the rationale being that the
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donation is a real alienation which conveys ownership upon its acceptance, hence any increase in value or any deterioration or loss thereof is for the account of the heir or donee. The attendant facts herein do no make a case of collation. The Court finds that the probate court, as well as respondent Court of Appeals, committed reversible errors.

First: The probate court erred in ordering the inclusion of petitioner in the intestate estate proceeding. Petitioner, a son-in-law of Rafael, is one of Rafaels compulsory heirs. Article 887 of the Civil Code is clear on this point: Art. 887. The following are compulsory heirs:

(1) (2) (3) (4) (5)

Legitimate children and descendants, with respect to their legitimate In default of the following, legitimate parents and ascendants, with respect The widow or widower; Acknowledged natural children, and natural children by legal fiction; Other illegitimate children referred to in article 287.

parents and ascendants; to their legitimate children and ascendants;

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos 1 and 2; neither do they exclude one another. In all cases of illegitimate children, their filiation must be duly proved. The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code.
With respect to Rafaels estate, therefore, petitioner who was not even shown to be a creditor of Rafael is considered a third person or a stranger. As such, petitioner may not
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be dragged into the intestate estate proceeding. Neither may he be permitted or allowed to intervene as he has no personality or interest in the said proceeding, which petitioner
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correctly argued in his manifestation.

[31]

Second: As a rule, the probate court may pass upon and determine the title or ownership of a property which may or may not be included in the estate proceedings.
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Such determination is provisional in character and is subject to final decision in a

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separate action to resolve title. In the case at bench, however, we note that the probate court went beyond the scope of its jurisdiction when it proceeded to determine the validity of the sale of the Valenzuela property between Rafael and Estrellita and ruled that the transfer of the subject property between the concerned parties was gratuitous. The interpretation of the deed and the true intent of the contracting parties, as well as the presence or absence of consideration, are matter outside the probate courts jurisdiction. These issues should be ventilated in an appropriate action. Third: The order of the probate court subjecting the Paraaque property to collation is premature. Records indicate that the intestate estate proceedings is still in its initiatory stage. We find nothing herein to indicate that the legitimate of any of Rafaels heirs has

been impaired to warrant collation. We thus advert to our ruling in Udarbe v. Jurado, 59 Phil. 11, 13-14, to wit:

We are of the opinion that this contention is untenable. In accordance with the provisions of article 1035 of the Civil Code, it was the duty of the plaintiffs to
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allege and prove that the donations received by the defendants were inofficious in whole or in part and prejudiced the legitimate or hereditary portion to which they are entitled. In the absence of evidence to that effect, the collation sought is untenable for lack of ground or basis therefor.
Fourth: Even on the assumption that collation is appropriate in this case the probate court, nonetheless, made a reversible error in ordering collation of the Paraaque property. We note that what was transferred to Estrellita, by way of a deed of sale, is the Valenzuela property. The Paraaque property which Estrellita acquired by using the proceeds of the sale of the Valenzuela property does not become collationable simply by reason thereof. Indeed collation of the Paraaque property has no statutory basis. The
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order of the probate court presupposes that the Paraaque property was gratuitously conveyed by Rafael to Estrellita. Records indicate, however, that the Paraaque property was conveyed for and in consideration of P900,000.00, by Premier Homes, Inc., to
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Estrellita. Rafael, the decedent, has no participation therein, and petitioner who inherited and is now the present owner of the Paraaque property is not one of Rafaels heirs. Thus, the probate courts order of collation against petitioner is unwarranted for the obligation to collate is lodged with Estrellita, the heir, and not to herein petitioner who does not have any interest in Rafaels estate. As it stands, collation of the Paraaque property is improper for, to repeat, collation covers only properties gratuitously given by the decedent during his lifetime to his compulsory heirs which fact does not obtain anent the transfer of the Paraaque property. Moreover, Rafael, in a public instrument, voluntarily and willfully waived any claims, rights, ownership and participation as heir in the Paraaque property.
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Fifth:

Finally, it is futile for the probate court to ascertain whether or not the

Valenzuela property may be brought to collation. Estrellita, it should be stressed, died ahead of Rafael. In fact, it was Rafael who inherited from Estrellita an amount more than the value of the Valenzuela property. Hence, even assuming that the Valenzuela property
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may be collated collation may not be allowed as the value of the Valenzuela property has

long been returned to the estate of Rafael. Therefore, any determination by the probate court on the matter serves no valid and binding purpose.

18 IN RE SUMMARY SETTLEMENT OF THE ESTATE OF MELODIA FERRARIS. FILOMENA ABELLANA DE BACAYO, petitioner-appellant, vs. GAUDENCIA FERRARIS DE BORROMEO, CATALINA FERARIS DE VILLEGAS, JUANITO FERRARIS and CONCHITA FERRARIS, oppositors-appellees. G.R. No. L-19382 August 31, 1965

FACTS: Melodia Ferraris was a resident of Cebu City until 1937 when she transferred to Intramuros, Manila. She was known to have resided there continuously until 1944. Thereafter, up to the filing on December 22, 1960 of the petition for the summary settlement of her estate, she has not been heard of and her whereabouts are still unknown. More than ten (10) years having elapsed since the last time she was known to be alive, she was declared presumptively dead for purposes of opening her succession and distributing her estate among her heirs. Melodia Ferraris left properties in Cebu City, consisting of onethird (1/3) share in the estate of her aunt, Rosa Ferraris, valued at P6,000.00, more or less, and which was adjudicated to her in Special Proceeding. The deceased Melodia Ferraris left no surviving direct descendant, ascendant, or spouse, but was survived only by collateral relatives, namely, Filomena Abellana de Bacayo, an aunt and half-sister of decedent's father, Anacleto Ferraris; and by Gaudencia, Catalina, Conchita, and Juanito, all surnamed Ferraris, her nieces and nephew, who were the children of Melodia's only brother of full blood, Arturo Ferraris, who pre-deceased her (the decedent). These two

classes of heirs claim to be the nearest intestate heirs and seek to participate in the estate of said Melodia Ferraris. ISSUE/S: Who should inherit the intestate estate of a deceased person when he or she is survived only by collateral relatives, to wit an aunt and the children of a brother who predeceased him or her? RULING: The Court ruled that that under our laws of succession, a decedent's uncles and aunts may not succeed ab intestato so long as nephews and nieces of the decedent survive and are willing and qualified to succeed. The trial court ruled that the oppositorsappellees, as children of the only predeceased brother of the decedent, exclude the aunt (petitioner-appellant) of the same decedent reasoning out that the former are nearer in degree (two degrees) than the latter since nieces and nephews succeed by right of representation, while petitioner-appellant is three degrees distant from the decedent, and that other collateral relatives are excluded by brothers or sisters or children of brothers or sisters of the decedent in accordance with article 1009 of the New Civil Code. Against the above ruling, petitioner-appellant contends in the present appeal that she is of the same or equal degree of relationship as the oppositors appellees, three degrees removed from the decedent; and that under article 975 of the New Civil Code no right of representation could take place when the nieces and nephew of the decedent do not concur with an uncle or aunt, as in the case at bar, but rather the former succeed in their own right. The Court agrees with appellants that as an aunt of the deceased she is as far distant as the nephews from the decedent (three degrees) since in the collateral line to which both kinds of relatives belong degrees are counted by first ascending to the common ancestor and then descending to the heir (Civil Code, Art. 966). Appellant is likewise right in her contention that nephews and nieces alone do not inherit by right of representation (i.e., per stripes) unless concurring with brothers or sisters of the deceased, as provided expressly by Article 975: ART. 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions.

Nevertheless, the trial court was correct when it held that, in case of intestacy, nephews and nieces of the de cujus exclude all other collaterals (aunts and uncles, first cousins, etc.) from the succession. This is readily apparent from articles 1001, 1004, 1005, and 1009 of the Civil Code of the Philippines, that provided as follows: ART. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half. ART. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. ART. 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the decedent's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stripes. ART. 1009. Should there be neither brothers nor sister nor children of brothers or sisters, the other collateral relatives shall succeed to the estate. The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood. Under the last article (1009), the absence of brothers, sisters, nephews and nieces of the decedent is a precondition to the other collaterals (uncles, cousins, etc.) being called to the succession. This was also and more clearly the case under the Spanish Civil Code of 1889, that immediately preceded the Civil Code now in force (R.A. 386). Thus, Articles 952 and 954 of the Code of 1889 prescribed as follows: ART. 952. In the absence of brother, or sisters and of nephews or nieces, children of the former, whether of the whole blood or not, the surviving spouse, if not separated by a final decree of divorce, shall succeed to the entire estate of the deceased. ART. 954. Should there be neither brothers or sisters, nor children of brothers or sisters, nor a surviving spouse, the other collateral relatives shall succeed to the estate of deceased. The latter shall succeed without distinction of lines or preference among them by reason of the whole blood. It will be seen that under the preceding articles, brothers and sisters and nephews and nieces inherited ab intestato ahead of the surviving spouse, while other collaterals succeeded only after the widower or widow. The present Civil Code of the Philippines merely placed the spouse on a par with the nephews and nieces and brothers and sisters

of the deceased, but without altering the preferred position of the latter vis-a-vis the other collaterals. Appellants quote paragraph 2 of Tolentino's commentaries to Article 1009 of the present Civil Code as declaring that Article 1009 does not establish a rule of preference. Which is true as to "other collaterals," since preference among them is according to their proximity to the decedent, as established by Article 962, paragraph 1. ART. 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place. But Tolentino does not state that nephews and nieces concur with other collaterals of equal degree. On the contrary, in the first paragraph of his commentaries to Article 1009 (Vol II, p. 439) (which counsel for appellants had unethically omitted to quote), Tolentino expressly states:

Other collaterals. The last of the relatives of the decedent to succeed in intestate
succession are the collaterals other than brothers or sisters or children of brothers

or sisters. They are, however, limited to relatives within the fifth degree. Beyond
this, we can safely say there is hardly any affection to merit the succession of collaterals. Under the law, therefore, relatives beyond the fifth degree are no longer considered as relatives, for successional purposes. Article 1009 does not state any order of preference. However, this article should be understood in connection with the general rule that the nearest relatives exclude the farther. Collaterals of the same degree inherit in equal parts, there being no right of representation. They succeed without distinction of lines or preference among them on account of the whole blood relationship. (Emphasis supplied) that under our laws of succession, a decedent's uncles and aunts may not succeed ab

intestato so long as nephews and nieces of the decedent survive and are willing and
qualified to succeed.

19 GLICERIA CARANDANG-COLLANTES and LUZ CARANDANG, petitioners, vs. FELIX CAPUNO, LEONILA COSICO, LYDIA CAPUNO, DIOMEDES ALCANTARA,

SIMEON CAPUNO, DOMINGA COSICO, GERARDA COSICO, MARGARITA COCOLE, ANICETO CAPUNO, ALBINA AQUINO and COURT OF APPEALS, respondents. G.R. No. L-55373; July 25, 1983 FACTS: A complaint for annulment of a Donation Inter Vivos executed by the late Josefa Capuno on March 6, 1970, in favor of defendants-appellants (petitioners herein) namely, Gliceria Carandang-Collantes and Luz Carandang, was filed by plaintiffs-appellees (private respondents herein), four parcels of real property, including a residential house. Private respondents, alleged in their complaint, that upon the death of Josefa Capuno on 8 April 1970, she left as her only heirs plaintiffs herein, Felix Capuno, Lydia Capuno, and Simeon Capuno, being her nephews by her deceased brother Silverio, and Gerardo Capuno and Aniceto Capuno being also her nephews, by her deceased brother Juan Capuno. That the thumbmark appearing on the instrument, allegedly that (of) the deceased Josefa Capuno, was not hers, and granting arguendo, that it was, she did not intend to convey said properties to defendants herein under said deed, her consent thereto having been secured either through undue influence or fraud; there being no relation between them . . ." They then prayed that the donation inter vivos be declared annulled and of no force and effect and they be declared true owners of the properties entitled to the possession thereof and the reasonable value of the fruits realized therefrom from 8 April 1970 up to the time of actual delivery with legal interest thereon until fully paid plus attorney's fees and costs of litigation. In their Answer, petitioners, defendantsappellants below," specifically deny the allegations of par. 6, the truth being that the thumbmarks on the document (Annex "A", Complaint) are actually that of the deceased and that the said document purports to be what it represents and states and the donor's consent thereto was given freely and voluntarily without undue influence, fraud, or any vice which will vitiate the agreement. " As Defenses, defendants plead under par. 8 that "(d)uring practically all their lifetime, defendants have lived with Josefa Capuno who has treated defendants as the former's own blood relatives-in-fact, as her own grandchildren. Considering defendants' relations with, and the services rendered to, Josefa Capuno during her lifetime, it is natural that defendants should be the recipient of the deceased's liberality and generosity;" and under par. 9, "(t)aking into account the services rendered by the defendants during her lifetime,

the donation inter vivos (Annex "A", Complaint) actually is based on valuable consideration and, on this further ground, the document accordingly should be upheld as valid." Defendants further set up that plaintiffs have no cause of action and in any event, plaintiffs are guilty of laches. ISSUE/S: Whether or not there is forgery of the said signature RULING: The Court ruled that it must first be noted that the complaint filed by private respondents which was for annulment of the deed of donation inter vivos and attaching a true copy of the instrument marked as Annex "A" alleged two grounds for annulment. The first ground is the allegation that the thumbmark appearing on the instrument was not the thumbmark of the donor, Josefa Capuno. The second ground, or more correctly the alternative ground, is based on the allegation that "granting arguendo that it was, she (Josefa Capuno) did not intend to convey said properties to defendants herein under said deed, her consent thereto having been secured either through undue influence or fraud, there being no relation between them." The first ground raises the question of the genuineness or authenticity of the thumbmark affixed to the deed of donation.The second raises the issue whether there was undue influence or fraud exercised or committed to obtain the consent of the donor in the execution of the donation. Under the first issue, the evidence for the private respondents consisted of the testimonies of Aniceto Capuno, Albina Capuno and Lydia Capuno, three of the several private respondents. Specifically, Aniceto Capuno testified that on March 14, 1970, Josefa Capuno told him, " Sito these lands are the ones which will be inherited by you from me and these four parcels of land will pertain to Felix and his brother". He also declared that on March 17, 1970 at the Perpetual Hospital, Josefa Capuno told him while she was on his lap, "Sito, do (not) forget what I have told you as to what pertains to Felix, Lydia and Simeon and what pertains to you and your brother, and I do not want that you will have an argument on the matter because it is bad and I wish that you should follow that arrangement. Albina Capuno, wife of witness Aniceto Capuno, testified that from February 23 to March 14, 1970 when Josefa Capuno was treated at the Community Hospital, she did not leave the hospital and did not see Atty. Gertrudo B. Flores during that time and that on

March 6, 1970, no document was executed by said Josefa Capuno during her stay thereat. In addition thereto, Lydia Capuno testified that her aunt, Josefa Capuno, knows how to write her name and when asked if she knows how to read, the witness answered: "She (Josefa) could try to read, sir. Since the burden of proof lies on the plaintiffs, private respondents herein, to prove affirmatively the truth of their allegations in the complaint that the donation, a public instrument duly acknowledged before a notary public, bears a thumbmark which is not that of the donor, and therefore forged, fictitious or fraudulent, it is their duty to present strong, complete and conclusive evidence in support thereof, and not merely by preponderance of evidence. Plaintiffs have not presented any proof in support of the alleged forgery or fictitiousness of the thumbmark in question, neither by an expert or by comparison with the true thumbprint of the donor, Josefa Capuno. The testimony of Aniceto Capuno that his aunt, Josefa Capuno, had indicated to him shortly before her death the division of the donated properties among the nephews and niece of Josefa is no proof that Josefa did not execute the deed of donation in favor of the defendants. Neither are the declarations of Albina and Lydia Capuno who claimed to be taking care of Josefa at the hospital from February 13 to March 14, 1970 and were always with her, prove that the deed in question was not executed by the donor. For these witnesses are parties to the case, biased and stand to benefit from the annulment of the deed. Their testimonies are inherently weak as against the testimony of the notary public who notarized the document and declared that the document was acknowledged before him and the thumbmark was that of the donor, Josefa Capuno. The Court ruled that the evidence of the plaintiffs in support of the first ground for annulment is insufficient. They have not established the first cause of action by strong, complete and conclusive evidence which is the rule established in this jurisdiction. While the case at bar is not for reformation of contract but is for annulment of a donation to which a fictitious or false thumbmark not belonging to the donor had been affixed thereto, which is a criminal act and may cause the prosecution and conviction of the notary public as well as his disbarment as a lawyer. With respect to the alternative ground of undue influence or fraud, the codal provision, Articles 1337 and 1338 N.C.C. are clear and explicit in defining thatArt. 1337. There is undue influence when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. The following circumstances shall be considered: the

confidential, family, spiritual and other relations between the parties, or the fact that the person alleged to have been unduly influenced was suffering from mental weakness, or was ignorant or in financial distress. Art. 1338. There is fraud when, through insidious words or machinations of one of the contracting parties, the other is induced to enter into a contract which, without them, he would not have agreed to. The records disclose that the defendants presented Attorney Gertrudo B. Flores, the notary public who notarized the deed of donation in question. He testified on direct examination and was cross-examined by opposing counsel, and the trial court, assessing his testimony, said "it (is) hard to believe the document was ratified by the deceased before him or in his presence." The positions of the donor, whether in her bed lying, or raised by the two girls, or seated in a chair during the execution and notarization of the deed are immaterial for what is important is the genuineness of the thumbmark of the donor which the notary public positively affirmed to be that of the donor as he helped her affix her thumbmark on the document on the left hand margin and on the printed name on the second page. On the essential and material facts, the testimony of the notary public who is also a lawyer is satisfactory and must be given more credence than the testimonies of the Capuno witnesses which merely implied that the thumbmark on the deed of donation was not affixed by Josefa Capuno since no deed was notarized during her confinement at the hospital. The Complaint should be dismissed.